- 32 - from its active conduct of a trade or business within Puerto Rico. We are unable to find that such was the case. MedChem P.R. did not actively conduct a trade or business within Puerto Rico throughout the 3-year period. Whether MedChem P.R. actively conducted such a trade or business is a highly fact intensive issue as to which petitioners bear the burden of proof. Cf. Higgins v. Commissioner, 312 U.S. 212, 217 (1941); Deputy v. du Pont, 308 U.S. 488, 496 (1940); Welch v. Helvering, 290 U.S. 111, 115 (1933); Plymouth Sav. Bank v. United States, 187 F.3d 203, 210 (1st Cir. 1999). Because Congress has not explicitly defined the phrase “active conduct of a trade or business” for purposes of section 936(a) (or, for that matter, for any other purpose of the Code), Congress has essentially left it to the Secretary to define that phrase by way of regulations or, in the absence of regulations, to the courts to construe the phrase by way of judicial interpretation. As the Supreme Court observed in construing the phrase “trade or business” for purposes of section 162(a): The phrase “trade or business” has been in � 162(a) and in that section’s predecessors for many years. Indeed, the phrase is common in the Code, for it appears in over 50 sections and 800 subsections and in hundreds of places in proposed and final income tax regulations. The slightly longer phrases, “carrying on a trade or business” and “engaging in a trade or business,” themselves are used no less than 60 times in the Code. The concept thus has a well-known and almost constant presence on our tax-law terrain. DespitePage: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Next
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